'Disparate impact' is out: Base discipline on behavior, not race, says Trump order

If schools have fair rules that are applied even-handedly, it doesn't matter if black students (or any other racial group) are disciplined more often than others, concludes a new executive order, Reinstating Common Sense School Discipline Policies.

Under the Obama administration in 2014, districts were told they could lose federal funding for violating the Civil Rights Act, if members of some groups were suspended, expelled or referred to law enforcement at higher rates than others. If there was "disparate impact," it didn't matter if policies were race-neutral, the guidance from the Education and Justice Departments warned. It was evidence of bias.

Many school districts softened punitive discipline policies, adopted "restorative practices" and reduced suspensions and expulsions.

“Schools ignored or covered up — rather than disciplined — student misconduct in order to avoid any purported racial disparity in discipline numbers," according to a 2018 report by the Federal Commission on School Safety. That made schools less safe and made it harder for motivated students to learn. “Disciplinary decisions are best left in the hands of classroom teachers and administrators” and should be based on student behavior, rather than racial statistics, the report concluded.

Trump rescinded the "disparate impact" policy in 2018, but the Biden administration revived it in 2023, charges the executive order. As a result, "teachers and students are suffering increased levels of classroom disorder and school violence."

In a statement, Education Secretary Linda McMahon said school “disciplinary decisions should be based solely on students’ behavior and actions.” Biden administration policies “placed racial equity quotas over student safety — encouraging schools to turn a blind eye to poor or violent behavior in the name of inclusion.” 

The 2023 guidance was much weaker than the 2014 policy, noted Dan Morenoff in City Journal last year. There were no threats to withhold federal funding and no mention of "disparate impact," just a plea to analyze data and look for evidence of bias. The Biden administration appeared unwilling to defend "disparate impact" in court.

Statistics and surveys show stark disparities in student misbehavior among demographic groups, writes Gail Heriot, a law professor who serves on the U.S. Commission on Civil Rights. Girls behave better than boys. Asian-American students behave better than black students (and everyone else). Students with disabilities such as "emotional and behavioral disorder" tend to behave badly.

"Restorative" discipline won't go away any time soon. Many school administrators -- and some teachers -- strongly support it. But I wonder if we'll see teachers pushing for removing disruptive or violent students from classrooms so they can teach. The rise of school choice could have an impact too. Many more parents will have the ability to remove their children from disorderly, dangerous schools and pay for alternatives.